Board for Correction Case No. 181-96

109.00 Appointment as Commissioned Officer - Credit for active duty

The Board members received two opinions from the Office of General Counsel (OGC) on Xxxxxxxxxx appeal. The first opinion allowed him to appeal to the Board after withdrawing his EEO complaint which he did. The second opinion bound him to Title VII procedures precluding consideration of his appeal by the Board members. Subsequently, OGC agreed that this conflicting situation would deny Xxxxxxxxxx due process. Therefore, without objection. the Board members could consider his appeal.

Officer's Appeal for Relief:

Xxxxxxxxxx asked for:

Correction of his record so that the incorrect Commissioned Officers' Effectiveness Reports (COERS) for 1991, 1992 and 1993 are removed or amended.

Pay for three and one half years of additional service at the Temporary Grade 0-6.

Correction of his record to show that he retired with 30 years of service. Pay him retirement benefits from the additional years of service granted.

Any other relief deemed appropriate by the Board.

Summary of xxxxxxx Arguments and Documentation:

In xxxx he was assigned by the Public Health Service (PHS) to xxxx xxxxxxxxx, Washington, DC. At that time, Xxxxxxx was part of the National Institute on Mental Health, an agency under the control of the Federal Government. He served as staff xxxxxx xxxxxx from 1982 to 1985 and later as substance abuse coordinator and case manager.

In 1987 the District Government assumed control of Saint Elizabeth's Hospital under an agreement with the Federal Government. Following the agreement, PHS detailed him to the District Government on Xxxxxx 1987. While on detail, he was subject to PHS regulations and policies not those of the District Government (he believed this based on the content of the regulations and the Memorandum of Understanding between PHS and the District Government).

A number of positive things happened to him during 1987; (a) was promoted to the Temporary Grade 0-6 in xxxxxx 1987 and (b) was nominated for the Meritorious Service Medal.

His case load had been too high (50 to 60 patients}. He complained to his supervisors but to no avail.

He contended that until 1991 he had received favorable COERS and recommendations for promotion while at Xxxxxxx. A 1990 memorandum from xxxxxx xxxxxxxx; Alcohol, Drug Abuse, and Mental Health Administration; Commissioned Corps Coordinator, recommended that the COERS of 0-6 officers (he was a Temporary Grade 0-6 at the time} be lowered to encourage high graded officers to separate and to allow the Corps to maintain the proper ratio among officer grades.

He contended that his 1991 and 1992 COERS had been incorrect and that the evaluation process did not follow PHS procedures. He was not informed of the results of the 1991 and 1992 Promotion Boards until his next COER had been completed. This violated CCPM, Subchapter CC 23.4, INSTRUCTION 5, "Failure of Permanent Promotion. He also contended that the timing of his 1992 COER did not allow him time to improve his performance over that in 1991. His 1992 COER was completed before he was notified of the results of the 1991 Promotion Board. This violated INSTRUCTION 5.

Finally, he contended that he had been targeted for lowered COERS and demotion in retaliation for reporting on problems at Xxxxxxx. In addition to his COERS, he contended that PHS violated the Privacy Act and its own regulations by allowing unauthorized persons to have access to his personnel records.

Summary of Division of Commissioned Personnel's (DCP)

Arguments and Documentation:

DCP contends that Xxxxxxxxxx request is not properly before the Board because Xxxxxxxxxx has failed to exhaust applicable administrative and legal remedies. Further, the Board lacks the authority to grant remedies pursuant to the Privacy Act.

Should the Board reach the merits of Xxxxxxxxxx case, DCP recommends that his request to correct his record to show that he was on active duty since xxxxxx 1994 be denied. To avoid facing an Involuntary Retirement Board, Xxxxxxxxxx voluntarily entered into a negotiated settlement agreement with DCP in which the Director, DCP, agreed not to demote Xxxxxxxxxx as required by CCPM, Subchapter CC23.4,INSTRUCTION 5, Section C(5). In return, Xxxxxxxxxx agreed to voluntarily retire effective xxxxxxx 1993.

In good faith, DCP upheld its part of the bargain and Xxxxxxxxxx was permitted to retain his temporary grade until retirement. Xxxxxxxxxx submitted his request for voluntary retirement and was retired on xxxxxxxx 1993, pursuant to his voluntary request for retirement. Contrary to the terms of the good faith agreement, Xxxxxxxxxx now asks the Board to rescind his voluntary retirement. The Board should find that Xxxxxxxxxx submitted his application to the Board in bad faith because he seeks to avoid the duty to retire effective xxxxxxx 1994 that he incurred as a part of the agreement. Consequently the Board, sitting in equity, should apply the equitable principles of the Unclean Hands Doctrine and deny Xxxxxxxxxx request in its totality.

1.Correction of his record so that the incorrect COERS for 1991, 1992 and 1993 are removed or amended.

Findings:

1991 COER

a.

The Board members found that Xxxxxxxxxx 1991 COER compared to his 1990 COER showed: a decrease in those marked "exceptional" and "well above average" and an increase in those marked "competent" and "marginal." He alleged that these changes were the result of the 1990 memorandum from Xxxxxxxxxxxxxxx, although he concurred with the evaluation.

b.

The Board members found that the memorandum from Xxxxxxxxxxxxxxx was open to more than one interpretation. It discussed a personnel management problem or situation at the District's Commission on Mental Health Service that needed improvement. The memorandum did not direct rating officers or reviewing officials to lower officer ratings. Rather, the memorandum stressed the need for senior officers to improve their performance and for supervisors to rate officers on the basis of their actual performance.

c.

The Board members found that the record did not contain any documentation showing the way in which the memorandum impacted negatively on Xxxxxxxxxx evaluation and/or his COER ratings. They considered his conclusion regarding the effects of the memorandum to have been conjectured since the record did not support his view.

1992 COER

a.

The Board members found that Xxxxxxxxxx 1992 COER compared to his 1991 COER showed: a decrease in those marked "competent" and an increase in those marked "marginal." He alleged ­that the timing of the 1992 Promotion Board's memorandum informing him that he was not recommended for promotion to the permanent grade arrived too late for him to take corrective action to improve his performance.

b.

The Board members found that Xxxxxxxxxx was informed of the results of the 1992 Promotion Board on Xxxx 1992 (his 1991 COER was a factor in the board's deliberations.} He submitted his 1992 COER to his supervisor on Xxxx 1992 covering the period Xxxxxx 1991 to Xxx 1992. The date of his submission and the end date of his evaluation period both happened before being informed of the 1992 Promotion Board's results.

c.

INSTRUCTION 5, Section C. "Policy? (3)(d) directed DCP, upon the initial recommendation against a permanent promotion, to provide Xxxxxxxxxx with written notification about: The availability of counseling to assist the officer to improve his/her performance or conduct. Upon examination of the worksheets compiled by the 1992 Promotion Board, the Board members found that all raters concluded that Xxxxxxxxxx should be retired and/or terminated. They did not recommend counseling as an option. For this reason, the Xxxx 1992 memorandum did not mention counseling (Xxxxxxxxxx had received counseling on earlier occasions). INSTRUCTION 5 did not mention a time line within which Xxxxxxxxxx should have received notice of the Promotion Board's recommendation. The recommendation was undoubtedly influenced by his 1991 COER ratings which were known to him on Xxxxxx 1991 when he concurred with his evaluation.

d.

CCPM, Subchapter 23.4, INSTRUCTION 4, " Promotion Boards," also was supportive of the Promotion Board process. It allowed the Promotion Board to: make recommendations concerning assignment and training of officers and for those officers who fail to be recommended for promotion, recommend reduction in grade (if holding temporary grade), separation or retirement. The record did not document that the Promotion Board ever considered training a viable option for Xxxxxxxxxx since he was not recommended for promotion. The raters recommended that he be retired and/or terminated. For this reason, the Xxxx 1992 memorandum did not mention training.

1993 COER

a.

The Board members found that Xxxxxxxxxx 1993 COER compared to his 1992 COER showed: an increase in those marked "competent and a decrease in those marked marginal." He was informed of the results of the 1993 Promotion Board on Xxxx 1993 (his 1992 COER was a factor in the board's deliberations). He submitted his 1993 COER to his supervisor on Xxxx 1993 covering the period Xxxx 1992 to Xxxx 1993. He submitted his 1993 COER at the end of his evaluation period and before being informed of the 1993 Promotion Board's results.

The Board members found that the facts and circumstances associated with Xxxxxxxxxx 1993 COER did not differ from those associated with his 1992 COER. The record did not document that the Xxxxxxxxxxxxx memorandum had a negative impact on either his 1992 COER ratings or his 1993 COER ratings. The same determination was made about INSTRUCTION 5 and INSTRUCTION 4. The Board members also found, upon examining the worksheets compiled by the 1993 Promotion Board, that the board continued to recommend that Xxxxxxxxxx be retired. xxx xxxx recommended involuntary retirement.

b.

Conclusions:

a.

Until 1987 Xxxxxxxxxx worked at Xxxxxxx controlled by a federal agency. He was subject to the same policies and procedures as other Corps officers. He was detailed to Xxxxxxx in 1987, now controlled by the District Government following a transfer of the hospital to the District Government. He then became subject to the policies and procedures of the District Government and those of the Commissioned Corps pertaining to his COERS. These allowed his supervisor to serve as his rating officer. They also allowed District Government officials to have access to his personnel records for personnel purposes.

Xxxxxxxxxx believed that his case load impacted negatively on his performance and ratings he received. His case load averaged 43+ cases from 1986 to 1993. It was 41+ cases from 1991 to 1993 (his last three years as a commissioned officer). His case load did not appear as a factor in his overall ratings nor in hissupervisors' recommendations that he be promoted (xxx xxxxx xxxxxxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxxxx Services, wrote the 1993 Promotion Board on xxxxxxx 1993 recommending that he not be promoted; he wrote DCP on Xxxxxxx 1993 recommending that he be terminated).

Xxxxxxxxxx ratings on his 1991, 1992 and 1993 COERS and others are summarized below:

Absent any evidence documenting the effects of the Xxxxxxxxxxxxxxx memorandum, his ratings reflected his performance. His overall ratings were inconsistent (although most ratings were "Well Above Average" during the three years prior to his 1991 COER). "Exceptional" ratings were reported in 1985

Overall

Inadequate

Case load

(A) 0 0 0 0 0 0 0

(D) (D) (C) (D) (C) (C) (C)

/ 50+ 50+ 35+ 45+ 40+ 40+

50+ 50+ 35+

Recommended for promotion by program officials Yes Yes Yes Yes

Yes Yes Yes Yes/ YesYesYes No No

and 1990; "marginal" ratings in 1991, 1992 and 1993. The record did not demonstrate that the recommendations of the 1992 and 1993 Promotion Boards had been due solely to his 1991 and 1992 COERS (to the exclusion of all other considerations). He had trouble performing in a lower level billet and for this reason, should not have engaged in outside activities. He considered retirement before meeting with DCP to discuss his options. There was no basis for reversing the decision allowing him to voluntarily retire.

d.

The Board members became aware that closer coordination between the times when Xxxxxxxxxx was notified of Promotion Board decisions and times when he could have taken corrective actions would have been beneficial to him. The receipt of such information in a timely manner could have assisted him in developing work plans since the scores recorded on the worksheets compiled by Promotion Boards defined areas in which he could have sought improvement.

However, the Board members also wondered what kind of training and/or counseling could have been practical and appropriately available to an officer with over 26 years of service, given the fact that Promotion Boards not only recommended that he not be promoted to the permanent grade 06, but also that he be retired and/or terminated (he was eligible for retirement due to having more that 20 years of service).

e.

The record did not document that Xxxxxxxxxx ratings were caused by retaliation (law suit came in 1989) for having revealed in a wrongful death case XXXXXXXXXXX XXXXXX as the culprit in the death of a patient or that his COERS had been lowered for reporting on problems at the hospital. The record also did-not document that the Promotion Board gave greater importance to an anonymous recommendation that he not be promoted over a 1992 recommendation by his program officials that he be promoted. His role as a defendant in a malpractice suit caused a more critical examination of his record and his performance.

Recommendations and Corrections to the Record:

Introduction

In Xxxxxxxxxx view, his request for relief hinged on removing his 1991, 1992 and 1993 COERS from his record. However, removal of these COERS would not have changed his outcome. The recommendations that he not be promoted causing him to be twice passed over for promotion were made by Promotion Boards. In making determinations the Promotion Boards considered his total record (not just his COERS but letters, memoranda, notes and comments in his Official Personnel File attesting to his. performance and prospects).

a. Correction of his record so that the incorrect COERS for 1991, 1992 and 1993 are removed or amended.

Recommendation: request for relief denied. No correction to his record or issuance of personnel orders required.

b.

Pay for three and one half years of additional service at the Temporary Grade 0-6.

Recommendation: none.

No correction to his record or issuance of personnel orders required.

c.

Correction of his record to show that he retired with 30 years of service. Pay him retirement benefits from the additional years of service granted.

Recommendation: none.

No correction to his record or issuance of personnel orders required.

d.

Any other relief deemed appropriate by the Board.

Recommendation: none.

No correction to his record or issuance of personnel orders required.

We certify that the Board members' recommendations reflect their views and actions after considering Xxxxxxxxxx appeal and that they have concurred in the recommendations.

We certify, further, that the Case Record, shown as an Attachment, contains all of the documentation received on Xxxxxxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by the Board members in arriving at their recommendations.

Finally, we certify that a quorum was present on xxxxxxxx 1998 when Xxxxxxxxxx appeal was considered.

I hereby ( ) approve ( ) disapprove the Board members' recommendations on Xxxxxxxxxx appeal received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96-76 as amended), and 42 U.S.C. 213a(a) (12), extending to the commissioned corps the provisions of 10 U.S.C. 1552. The recommendations require no correction to his record or issuance of personnel orders.

Date

Lynnda M. Regan
Director
Program Support Center

Attachment: Case Record

Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.